Newly disclosed papers give rules for NSA surveillance without a warrant

Written by Max Ehrenfreund

Classified documents newly made available to The Washington Post and the Guardian describe the National Security Agency’s procedures for protecting the privacy of U.S. citizens. Since Edward Snowden, a former NSA contractor, first leaked documents describing the agency’s surveillance program this month, it has become the subject of intense controversy here and abroad. The new disclosures did not mollify the agency’s critics:

Newly disclosed documents describe a series of steps the world’s largest spy agency is supposed to take to keep Americans from being caught in its massive surveillance net. They suggest that the NSA has latitude to keep and use citizens’ communications under certain conditions . . .

President Obama said after the disclosures that NSA domestic activities “do not involve listening to people’s phone calls, do not involve reading the e-mails of U.S. citizens or U.S. residents, absent further action by a federal court, that is entirely consistent with what we would do, for example, in a criminal investigation.”

The new documents show that the NSA collects, processes, retains and disseminates the contents of Americans’ phone calls and e-mails under a wide range of circumstances . . .

“These documents confirm what we have feared all along, that the NSA believes it can collect Americans’ international communications with little, if any, restriction,” said Alex Abdo, a staff lawyer with the American Civil Liberties Union. “Its procedures allow it to target for surveillance essentially any foreigner located abroad — whether or not they’re suspected of any wrongdoing, let alone terrorism.”

Administration officials say the surveillance program does not target Americans anywhere without a warrant. Still, said Gregory Nojeim, senior counsel for the Center for Democracy and Technology, “there’s a lot of leeway to use ‘inadvertently’ acquired domestic communications,” for instance, for criminal inquiries.

And the rules show that the communications of lawyers and their clients may be retained if they contain foreign intelligence information, although dissemination must be approved by the NSA general counsel . . .

“What’s most striking about the targeting procedures is the discretion they confer on the NSA,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security program.

In figuring out whether a target is “reasonably believed” to be located overseas, for example, the agency looks at the “totality of the circumstances” relating to a person’s location. In the absence of that specific information, “a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person,” according to rules on the targeting of suspects . . .

If domestic communications lack significant foreign intelligence information, they must be promptly destroyed. Communications concerning Americans may not be kept more than five years.

If a target who was outside the United States enters the country, the monitoring must stop immediately. Ellen Nakashima, Barton Gellman and Greg Miller

Obama, meanwhile, was scheduled to meet with an oversight board for the first time today to discuss civil liberties and national security. His administration has defended the surveillance, with intelligence officials testifying before a House committee earlier this week that the NSA’s programs had helped to thwart dozens of terrorist plots. Two senators, Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) disputed that claim:

Wyden and Udall, both members of the Senate Intelligence Committee, acknowledged that “multiple terrorist plots have been disrupted at least in part because of information” from the Internet surveillance program, which is known as PRISM and is authorized under the Foreign Intelligence Surveillance Act.

But, they said, “saying ‘these programs’ have disrupted ‘dozens of terrorist plots’ is misleading if the bulk phone-records collection is actually providing little or no unique value.”

They said it is unclear why federal agents do not simply obtain a court order for the phone records of individual terrorist suspects rather than creating a massive government database of records . . .

“It may be more convenient for the NSA to collect this data in bulk, rather than directing specific queries to the various phone companies,” said the senators, who have introduced a bill to limit the surveillance. “But in our judgment, convenience alone does not justify the collection of the personal information of huge numbers of ordinary Americans if the same or more information can be obtained using less obtrusive methods.” Ellen Nakashima

Meanwhile, the company that vetted Snowden before he began working at the NSA is reportedly the target of a criminal probe:

The Falls Church-based government contracting firm that performed a background investigation into Edward Snowden before he disclosed details of a secret federal surveillance program is under criminal investigation by the Office of Personnel Management, according to Sen. Claire McCaskill (D-Mo.).

McCaskill said Thursday at a Senate hearing that the investigation into USIS, whose original name was US Investigations Services, is based on the “systemic failure to adequately conduct investigations under its contract” with the federal government . . .

According to its Web site, privately held USIS has 100 contracts to provide background checks for more than 95 federal agencies. The company was established in July 1996 “as a result of the privatization of the investigative branch of the Office of Personnel Management,” according to the Web site. Thomas Heath

For past coverage of Snowden and the NSA, continue reading here.

 
Read what others are saying